Justices who want to get rid of substantive due process

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Personally, I find the Ninth Amendment a much stronger way to protect the rights of the people.

I suppose so, since it fairly screams "hey, federal judges, read whatever rights you want into me!", whereas the Fourteenth Amendment has to be made to say that over the course of the conference and opinion-writing process. I'm a proponent of using the Ninth Amendment as minimally as possible (basically just as a way to dismiss arguments that a right being unenumerated means ipso facto that it doesn't exist) precisely because of this "plucking new rights from thin air" quality. If something like the right not to get eugenically sterilized or not to get arrested for having anal sex really were on the line, though, I think most people even slightly open to legal realism would probably grit their/our teeth and accept a Ninth Amendment rationale against overturning it.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Mark, thanks for apologizing for the previous personal attack against Bruce, but just so you know, future personal attacks in this thread will be moderated.

Carry on, gentlemen.